This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
A single agreement, spoken, implied, or inferred from conduct, can generate a criminal charge that carries the same maximum punishment as the completed crime itself. Under Article 81 of the Uniform Code of Military Justice (UCMJ), conspiracy does not require the target offense to succeed. It does not require the accused to personally perform any criminal act. It requires an agreement and one overt step forward, by anyone in the agreement, to bring it closer to reality.
That structure makes Article 81 (10 U.S.C. § 881) one of the broadest charging tools available to military prosecutors. The statute reads: “Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.” Two elements. Severe consequences. And a body of case law that defines “agreement” far more expansively than most service members expect.
Agreement Plus One Overt Act
The MCM 2024, Part IV, Paragraph 5 establishes the elements the prosecution must prove beyond a reasonable doubt:
- That the accused entered into an agreement with one or more persons to commit an offense under the UCMJ.
- That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.
Two elements. But underneath them sits a dual intent requirement that courts have consistently emphasized.
First, the accused must have intended to enter into the agreement itself, a conscious, knowing decision to join a plan. Second, the accused must have shared the specific intent to accomplish the criminal objective of that agreement. As the Court of Appeals for the Armed Forces (CAAF) articulated in United States v. Harmon, 68 M.J. 325, conspiracy requires a “mutual understanding among the parties.” No formal words are needed. No written documentation. No detailed plan specifying each person’s role. The agreement can be established entirely through circumstantial evidence, through conduct, timing, and the reasonable inferences drawn from them.
In United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002), an agreement was inferred from the act of circling back to take a duffel bag that the co-conspirators had spotted outside a vehicle while driving through a housing area. No verbal plan was proven. The conduct spoke.
This is what gives conspiracy its prosecutorial reach. No formal meeting is required. It needs to function like one.
The Overt Act Requirement
The overt act separating criminal conspiracy from mere talk is, by design, a low threshold.
Legality of the act itself is irrelevant. Substantiality is not required. It does not need to bring the conspiracy close to completion. As the CAAF explained in United States v. Finch, 64 M.J. 118, the overt act’s purpose as an element “is to demonstrate that the agreement to commit a crime, which is the inherent nature of the offense of conspiracy, is alive and in motion.” A phone call, a purchase, a drive to a location, any of these may suffice if they manifest that the conspiracy is being executed.
Several rules govern the overt act element. The act must occur during or after the formation of the agreement, conduct predating the agreement does not qualify (MCM 2024, Part IV, Paragraph 5.c). The act need not be performed by the accused personally; any co-conspirator’s qualifying action satisfies this element while the accused remains in the conspiracy. And the prosecution may allege multiple overt acts but needs to prove only one.
One critical distinction from Article 80 (Attempts): while attempt requires the accused’s conduct to go beyond “mere preparation,” conspiracy’s overt act threshold is lower. Mere preparation, purchasing supplies, scouting a location, making a phone call, may be insufficient for an attempt charge but entirely sufficient for a conspiracy charge, provided the agreement is established.
What Separates Conspiracy From Related Offenses
Article 81 occupies a specific space in the UCMJ’s structure of inchoate offenses, and its boundaries matter.
Conspiracy versus attempt
Both are inchoate, they address criminal conduct that precedes a completed offense. But they punish different things. Article 80 punishes the individual act of moving toward a crime. Article 81 punishes the agreement to commit one. A service member can be charged with both conspiracy to commit an offense and the attempt to commit the same offense, because they are legally distinct crimes targeting different conduct (see MCM 2024, Part IV, Paragraph 5.c).
Conspiracy versus solicitation
Article 82 (Solicitation) addresses one person encouraging another to commit an offense. Conspiracy requires a mutual agreement; solicitation does not. A service member who asks another to commit a crime but receives no agreement has potentially violated Article 82, not Article 81. If the other person agrees and an overt act follows, both solicitation and conspiracy charges may apply, they are separate offenses.
The no-merger rule
Under military law, conspiracy does not merge into the completed substantive offense. This is a departure from some civilian jurisdictions. A service member can be convicted and punished separately for both the conspiracy and the underlying crime. The agreement itself is the offense, independent of whether the target crime ultimately succeeds. Commission of the intended offense may even constitute the overt act required for the conspiracy charge.
Wharton’s Rule
When a crime inherently requires the participation of two people, dueling, adultery, bribery, those two participants generally cannot be convicted of conspiring to commit that offense. The rationale: if the crime’s definition already contemplates a two-person agreement, conspiracy adds nothing. This limitation is preserved in MCM 2024, Part IV, Paragraph 5.c(3). It applies narrowly, only when the agreement exists solely between the minimum number of participants the offense requires.
Withdrawal, Termination, and Liability Boundaries
A conspiracy does not last forever, but it lasts longer than most service members realize.
The conspiracy continues to exist until its objective is accomplished, all members withdraw, or all members abandon the plan. Importantly, the conspiracy does not terminate simply because the government defeats its objective, an interrupted conspiracy is not the same as an abandoned one.
Withdrawal before the overt act is a complete defense. If the accused effectively withdrew from the agreement before any conspirator performed an overt act, no conspiracy was completed. Effective withdrawal requires affirmative conduct wholly inconsistent with continued adherence to the agreement, a clear, unequivocal severance of all connection with the conspiracy (MCM 2024, Part IV, Paragraph 5.c).
Withdrawal after the overt act changes the analysis. The accused remains guilty of the conspiracy itself and of any offenses committed pursuant to the conspiracy up to the point of withdrawal. What withdrawal accomplishes is cutting off liability for crimes committed by remaining conspirators after the accused’s departure.
This distinction matters because of vicarious liability. Under the Pinkerton doctrine, recognized in military law, a co-conspirator may be held criminally responsible for the foreseeable criminal acts of other conspirators committed in furtherance of the conspiracy, even acts the accused did not personally commit, plan, or know about in advance. As the CAAF noted in United States v. Browning, 54 M.J. 1, co-conspirator vicarious liability extends through Article 77 (Principals) even without specific pleading in the charges. Late withdrawal does not erase prior exposure.
The burden of proving withdrawal falls on the defense. Once raised, the prosecution must disprove it beyond a reasonable doubt. But the standard for effective withdrawal is demanding: the accused must have communicated the withdrawal clearly to all co-conspirators and taken affirmative steps to sever the connection. Simply ceasing participation, going quiet, declining to show up, does not qualify.
Maximum Punishment and Jurisdiction
The punishment framework for Article 81 mirrors that of the target offense with one significant exception and one significant expansion.
The maximum punishment authorized for a conspiracy conviction is the maximum punishment authorized for the offense that was the object of the conspiracy (MCM 2024, Part IV, Paragraph 5.d). If the target offense carries confinement of ten years, the conspiracy carries ten years. If the target carries life imprisonment, the conspiracy carries life. The death penalty is not authorized for a conspiracy conviction under ordinary circumstances. However, the MCM provides one exception: a conspiracy under the law of war that results in the death of one or more victims may be punishable by death.
Because conspiracy does not merge with the completed offense, a service member convicted of both faces separate punishment for each, the conspiracy and the substantive crime. This stacking effect means conspiracy charges carry significant additional sentencing exposure beyond the substantive offense alone.
A single agreement to commit multiple offenses constitutes a single conspiracy, not multiple conspiracies. The CAAF confirmed this principle in United States v. Mack, 58 M.J. 413: one agreement cannot be fractured into several conspiracies simply because it encompasses violations of several UCMJ articles. However, genuinely separate agreements to commit separate offenses may be charged as separate conspiracies.
For jurisdiction: conspiracy to commit an offense is triable by any court-martial that would have jurisdiction over the target offense. Where the target offense is a “covered offense” under the OSTC (Office of Special Trial Counsel), the conspiracy to commit it falls within the OSTC’s authority as well.
The statute of limitations for a conspiracy charge follows the general five-year rule under Article 43 of the UCMJ (10 U.S.C. § 843), unless the target offense carries a different limitations period. A conspiracy that targets a death-eligible offense, for example, would face no statute of limitations, because the target offense itself is not time-barred.
The Core of Article 81
Strip away the case law and the procedural layers, and Article 81 reduces to a specific proposition about criminal liability: the agreement to commit a crime is itself a crime, independent of whether that crime is ever carried out.
Two elements carry the entire charge. The accused entered an agreement, express or implied, formal or informal, proven directly or through circumstantial evidence, to commit a UCMJ offense. While that agreement remained in force, at least one conspirator took an overt step, however minor, toward making it real. The accused need not have performed the overt act. The target crime need not have succeeded. The maximum punishment mirrors the completed offense, minus the death penalty. And the conspiracy conviction stands alongside, not instead of, any conviction for the underlying crime.
The dual intent requirement is the prosecution’s burden: intent to agree and intent to achieve the criminal objective. The overt act threshold is the lowest of the inchoate offenses. And the withdrawal window closes the moment any conspirator acts.
Joseph L. Jordan, Attorney at Law: Article 81 criminalizes any agreement between two or more persons to commit a UCMJ offense, combined with a single overt act by any conspirator to advance the plan. The maximum punishment equals that of the completed target offense, and a conspirator can be convicted even if the planned crime never occurs.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.